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new trial, with leave to amend pleadings. The situa-
tion of the case at this time, for the purposes of re-
moval, was precisely the same as it would be if the
trial, instead of being on an issue of law involving the
merits, had been on an issue of fact to the jury, and
the court had, in its discretion, allowed a new trial
after verdict. We can hardly believe it would be
claimed that a removal could be had in the last case,
and in our opinion, it cannot in the first. The case of
Vannever v. Bryant, 21 Wall. 43, arose under the act
of March 2, 1867, ch. 196. which allowed a removal at
any time before the final hearing or trial of the suit,"
and what is there said is to be construed in connec-
tion with that fact. The same is true of Insurance Co.
v. Dunn, 19 Wall. 214. In King v. Worthington, 104
U. S. 44, and Hewitt v. Phelps, 105 id. 395, the ques-
tions were as to the time when a case could be re-
moved that was begun before the act of 1875 was
passed. In Lewis v. Smythe, 2 Woods, 117, the ques-
tion here presented was not involved, and the remo-
val was decided to be too late because it was not ap-
plied for until after a trial on the issues of fact had
begun. In Miller v. Tobin, 18 Fed. Rep. 609, the ex-
perienced District judge for the District of Oregon did
hold that a removal, applied for after hearing upon a
demurrer to a complaint, because it did not state facts
sufficient to constitute a cause of action, could be had;
but on full consideration, we are unable to reach that
conclusion. Alley v. Nott. Opinion by Waite, C. J.
[Decided April 21, 1884.]

have bond for bond in any event; it was a matter of
great moment to the purchasers, for every dollar al-
lowed to the trustees was so much less for them.
Swann v. Wright's Exrs., 110 U. S. 590. Williams v.
Morgan. Opinion by Bradley, J.
[Decided May 5, 1884.]


NEGLIGENCE -CROSSING RAILROAD TRACK-CONTRIBUTORY-QUESTION FOR JURY.-(1) Where a person attempts to cross the track of a railroad at a point where no public crossing has been established, and where the individual, having no right to cross, takes upon himself the hazard of the attempt, the track itself is a warning of danger, and no other evidence of its existence is necessary. (2) But all persons have a right to use as a place of transit an established crossing; and in approaching such places it is incumbent on those having control of a train to observe proper care and caution, and a disregard for so plain and apparent a duty may render them obnoxious to the charge of the grossest negligence. (3) Notwithstanding the most culpable negligence on the part of the defendant, the plaintiff is not entitled to recover in the action if the evidence demonstrates that the infliction of the injury would have been impossible had the injured party observed due care and caution. In 39 Md. 449, it is said, that "cases may and sometimes do occur, in which the uncontradicted evidence proves such a glar

v. Killip, 88
Penn. R. Co.

APPEAL--EXCESSIVE ALLOWANCE.--Where trustees anding act of carelessness on the part of the plaintiff as to
receivers of a railroad under a first mortgage sell it un-
der contract that the purchasers will recompense them
their expenses and services in caring for the road, the
sale being made through agents of the purchasers, the
agents being themselves bondholders, and interested
in a second mortgage, these agents or brokers are
quasi parties in the case, and have such an interest,
and are so situated, that they have a right, by leave of
the court, to except and object to charges and allow-
ances presented by the trustees and receivers; and
upon their objection being overruled, and an order
made allowing the charges, they have the right to ap-
peal, the order being final in its nature, and in a mat-
ter distinct from the general subject of litigation. We
think that the position of Williams and Thomson
made them quasi parties in the case, and brought
them within the reason of the former cases decided by
this court in which persons incidentally interested in
some branch of a cause have been allowed to inter-
vene for the purpose of protecting their interest, and
even to come into this court, or to be brought here on
appeal, when a final decision of their right or claim
has been made by the court below. We refer to the
cases of Blossom v. Milwaukee R. Co., 1 Wall. 655,
where a purchaser at a foreclosure sale was admitted
to appeal; Minnesota Co. v. St. Paul Co., 2 Wall. 634,
to the same effect; Hinckley v. Gilman R. Co., 94 U.
S. 467, where a receiver was allowed to appeal from a
decree against him to pay a sum of money in the
cause in which he was appointed receiver; Sage v. R.
Co., 96 U. S. 712, where parties interested were al-
lowed to appeal from an order confirming a sale;
Trustees v. Greenough, 105 U. S. 527, where an appeal
from an order for allowance of costs and expenses to a
complainant suing on behalf of a trust fund, was sus-
tained; and Hovey v. McDonald, 109 U. S. 150, where
an appeal was allowed to be brought against a receiver
from an order made in his favor. An allowance by a
court to the receivers and trustees of a railroad for
services and expenses in managing considered held and
excessive. It was a matter of no moment to the bond-
holders what allowances were made, for they were to

amount in law to contributory negligence, and in such
it is the duty of the court, when requested, to decide
the question without the intervention of the jury.
But in no case ought the court to take the question of
negligence from the jury unless the conduct of the
plaintiff, relied on as amounting in law to contribu-
tory negligence, is established by clear and uncontra-
dicted evidence." McMahon v. North. Cent. Rail-
way Co., 39 Md. 449. See also Pittsburg, etc., R. Co.
v. Andrews, 39 Md. 343; P. & R. R. Co.
Penn. St. 412;
29 Md. 38.
v. State. Opinion by Yellott, J.
under seal, dated 13th, Nov., 1879, A. F. F. agreed to
sell all the wood on his farms in Back River Neck to
L. F., for seventy-five cents per cord standing, to
mark out such grounds and on such farms as he
wanted the wood cut from, and to give L. F. full coal
privileges; and L. F. on his part agreed to take all
kinds of wood that will do for charcoal, and to leave
no wood standing at all that can be made into char-
coal; to pay for it as soon as taken from the choppers,
or as soon as it is corded and measured, and to receive
and haul away from said farms all the wood as above
specified, within two years from the date of this agree-
ment. In an action of covenant brought by A. F. F.
against L. F. for a breach of this contract, the court
said, we must be governed by the rule recently ap-
proved by this court in Camden Consolidated Oil Co.
v. Schlens & Co., 59 Md. 45; accordingly, held, (1) that
the contract constituted a sale by the owner of the
land, of the growing wood or timber upon it, at a cer-
tain sum per cord, the purchaser agreeing to cut and
haul away all of it that was suitable for charcoal, and
to pay the stipulated price therefor; the same to be
done within two years. (2) That it did not follow be-
cause of the failure of the purchaser to cut down and
carry away all such wood, or because he left some of
the wood standing, that the land itself was thereby
permanently injured or deteriorated in value. (3)

*To appear in 61 Maryland Reports.

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That if the plaintiff, immediately after default made, had proceeded as he might have done, to cut, haul and sell this wood in the market at the defendant's risk, he would have been entitled to recover the difference, if any, between what he would have realized from such sale, after deducting the cost of cutting and hauling, and the contract price. Masterton & Smith v. Mayor, etc., of Brooklyn, 7 Hill, 61; Eckenrode v. Chemical Co. of Canton, 55 Md. 51. (4) That having failed to do this, and the wood remaining standing on the land, he could only recover the difference in value of the wood thus left on the land, between the rate of seventy-five cents per cord, and its market value as it thus stood, and if it were of equal or greater value in the whole than seventy-five cents per cord, then he could recover no damages whatever on this account. (5) That as one of the inducements on the part of the plaintiff to enter into the contract, and one of the objects in the contemplation of both parties to it, was to have the land cleared for cultivation within two years, and a failure to clear it was to deprive the plaintiff of the use of it, for a time at least, as arable or tillable land, he was entitled for this deprivation, to such damages, if any, as the jury upou proper evidence should find he actually sustained thereby. (6) That damages on this account however could only be recovered for such reasonable time after the expiration of the two years as would have enabled the plaintiff to clear up his land by cutting and hauling away the wood thus left uncut by the defendant. Warren v Stoddard, 15 Otto, 224. Furstenburg v. Fawsett. Opinion by Miller, J.



REMOVAL OF CAUSE-DENIED DAMAGES FOR DIVERTING.-In an action against a railroad corporation to recover damages for the destruction of a field of rye by the diversion of a natural water-course, the corporation filed a petition for removal to the Federal court on the ground solely that it was a corporation organized under the act of Congress to aid in the construction of a railroad to the Pacific. Held, that the petition was properly denied. (2) The rule laid down in Palmer v. Waddell, 22 Kans. 352; and Gibbs v. Williams, 25 id. 214, as to what constitutes a natural water-course, reaffirmed. (3) Where a railroad company, by the digging of a ditch along its track, diverts the flow of a natural water-course, wholly or in part, to the injury of an adjoining landowner, it is no defense to an action to recover for such damages that the digging of the ditch was necessary for the protection of its track, or that the ditch was wholly on land owned by it in fee. Union Pacific R. Co. v. Dyche. Opinion by Brewer, J.

NEGLIGENCE-OMISSION TO SOUND WHISTLE, ETC.WHEN IMMATERIAL INSTRUCTION TO JURY.-The omission to sound the whistle of an engine in accordance with the provisions of § 60, ch. 23, Comp. Laws of 1879, is negligence. Railroad Co. v. Rice, 10 Kaus. 426; Railroad Co. v. Phillipi, 20 id. 12; Railroad Co. v. Wilson, 28 id. 639. But in an action to recover damages for stock injured on the crossing of a highway over the railroad track, if it appears by facts and circumstances proved that the injuries complained of were not caused by or attributable to such omission or neglect, the negligence is immaterial, and creates no liability against the railroad company for a recovery for damages to the stock upon the track. Railroad Co. v. McDaniel, 63 III. 122; Railroad Co. v. Blackburn, id. 167; Stoneman v. Railroad Co., 58 Mo. 503; Holman v. Railroad Co., 62 id. 562; Karle v. Railroad Co., 55 id. 483. An instruction to the jury that if there was

*To appear in 31 Kansas Reports.


negligence on the part of both parties, and they find
that the negligence of the plaintiff was only slight
compared with that of the defendant, their verdict
must be for the plaintiff," is erroneous. Railway Co.
v. Peavey, 29 Kans. 169; Railway Co. v. Young, 19 id.
488; Railway Co. v. Pointer, 14 id. 37; Sawyer v. Sauer,
supra. Atchison, Topeka, etc., R. Co. v. Morgan. Opin.
iou by Horton, C. J.

ATTACHMENT-OMISSION OF NAME OF PARTNER — LEVY NOT VITIATED. Where an action of attachment is brought in the name of a firm, and in the papers as originally filed the name of one of the partners is omitted, which omission is subsequently cured by amendment, the omission is not such a defect as vitiates the levy or can be taken advantage of by subsequent attaching creditors, or postpones the lien of the levy to that of such creditors. It was too slight a matter to affect or postpone the lien secured by the priority of levy. Stout v. Folger, 34 Iowa, 71; Ward v. Howard, 12 Ohio St. 158. Henderson v. Stetler. Opinion by Brewer, J.

records of


The court import absolute verity; and jurisdiction over the person is conceded, parol testimony is inadmissible in a collateral proceeding, to prove that what the record shows was done by the court was not in fact done. In re Watson, Petitioner, 30 Kans, 753. A justice of the peace has jurisdiction to try a misdemeanor case although several counts, each charging a separate of fense, are united in the same complaint, providing the offenses are all of the same general nature, and are each taken separately within the limits of his jurisdiction. In re Donnelly, 30 Kans. 191, 424. Where upon the trial of a complaint containing several counts the justice finds the defendant guilty on each count, and imposes a fine as to each count such as would be proper if the defendant had been tried upon that count separately, and no portion of the judgment has been satisfied, held, that although the aggregate of the fines exceeds five hundred dollars,a mittimus issued on such judgment and sentence is not void, and the defendant is not entitled to a discharge in habeas corpus. It is not pretended that any part of the sentence has been complied with, so that even upon the authorities most favorable to the petitioner, he is legally in custody. People v. Liscomb, 60 N. Y. 572; People v. Baker, 89 id. 467; People v. Wolf, 66 id. 10; Ex parte Van Hagan, 25 Ohio St. 426; People v. Shattock, 45 N. H. 211. Matter of Macke. Opinion by Brewer, J.



BANKRUPTCY-DISCHARGE-NEW PROMISE TO PAYCONSIDERATION.-The effect of a discharge in bankruptcy is absolutely to extinguish a debt, and not merely to bar the remedy for its recovery. Hence the mere acknowledgment of a debt after a discharge in bankruptcy therefrom, however clear, distinct and unambiguous it may be in its terms, is not sufficient to restore the debt so that suit can be maintained thereon. Yoxtheimer v. Keyser, 11 Penn. St. 364; Canfield's Appeal, 1 Week. Notes, 67; Allen v. Ferguson, 9 Bank. Law Jour. 481. The promise to restore a debt from which the debtor had been discharged by proceedings in bankruptcy upon which suit can be brought must be a clear, distinct and unequivocal promise to pay the specific debt (not the expression of a mere intention to pay), and must be without qualification or condition. The moral obligation to pay, coupled with the fact of the pre-existing liability, is

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sufficient consideration for such a promise. A statement in the following terms, "We owe her the money, will pay it some day; can't say when," is a sufficient promise upon which to bring suit for a debt discharged by proceedings in bankruptcy. Where plaintiffs declare against a firm for a debt which has been discharged by proceedings in bankruptcy, and on the trial prove a sufficient promise by one partner subsequent to the discharge to pay the debt, the narr. may be so amended after vordict as to declare against that partner only. Bolton v. King. Opinion by Clark, J. [Decided July 16, 1884.]

MINES AND MINING-LEASE OR SALE-TAXES.-(1) Where the surface of lands and minerals in place thereunder have been severed by the agreement of conveyance of the owner, and the respective divisions have become vested in different owners, the municipal authorities are bound to levy their taxes according to the ownership and value of these divisions. And each owner can be made responsible only for the tax on his interest, whether underlying strata or surface. (2) A. made an agreement with B., leasing to him all the coal beneath the surface of a certain tract of land of which A. was the owner. The lessee was to mine and remove in each year at least a certain number of tons, which he was to pay for monthly at a certain rate per ton, whether mined or not, unless mining should be prevented by certain specified contingencies. In case of neglect for thirty days to pay the said royalty, it might be distrained for. And for continued default the lease might be forfeited. The letting however was not for a term certain with reversion to the grautor, but without reversion and to be perpetual, until all the coal under the surface had been mined. And the rights and privileges therein conferred were extended to the heirs, executors, administrators and assigns of the respective parties. Held, that this agreement was not merely a license or lease to mine coal to become the lessee's when mined, but that it operated as such a severance of the surface and subjacent strata, and a sale or assignment of the coal in place as would relieve the owner of the surface from responsibility for taxes levied upon the coal. The language of this lease is in most respects similar to that referred to in the case of Scranton v. Phillips, 8 Week. Notes, 425, which was "of all the coal in and under said lot and other lands for and during the term and period of time as shall be required therefor to mine and remove all said coal." The further stipulations bear a close analogy to the contract now before us. In delivering the opinion of the court in Scranton v. Phillips the present chief justice says, although called a lease, it was virtually a sale of all the coal, with unlimited time to remove it, with the right at their election to yield it up after the expiration of ten years, etc. It is certainly true that a lease, properly so called, always conveys an interest in land, and in this respect it is to be distinguished from a mere license (11 Casey, 287), but where that which purports to be a lease conveys the interest of the lessor it differs in no respect from a sale. Palmer v. Edwards, 1 Doug. 187, note; 2 Black. Com. 317. (3) The liability of the owner of coal or mineral in place for taxes levied thereon, results from the nature of his estate or interest, and therefore he is not relieved from this responsibility, on the principle inclusio unius est exclusio alterius, by an express covenant in the instrument of severance that he shall pay all taxes levied upon the coal mined, with recourse to the lessor to refund the same. A mineral right is taxable as laud; the owners of the surface and of the mine are each taxable, according to the value of their respective interests; where there is a divided ownership there must be a divided taxation. Logan v. Washington Co., 5 Casey, 373. The owner of surface land can no more be

held for the tax upon the mineral strata, after a severance, than can the owner of the mine be held for the taxes upon the surface. Sanderson v. City of Scranton. Opinion by Clark, J.

[Decided April 7, 1884.]


LIMITATION-FROM WHAT TIME RUNS-KNOWLEDGE OF PROPERTY.-The defendant without leave took the plaintiff's iron; in the following year he promised to pay for it. Held, that the statute of limitations commenced to run at the time of the promise. Before the statute had run on the promise, the defendant left the State, leaving attachable property here; but the plaintiff had no actual knowledge of it; and there was no lack of reasonable diligence in not finding it. Held, that the claim was not barred. It was not necessary that the plaintiff should have had actual knowledge of the property and the defendant's title to it, Tucker v. Wells, 12 Vt. 240; but the defendant's ownership of it must have been notorious to such an extent that the plaintiff would have found it by reasonable search and inquiry. Wheeler v. Brewer, 20 Vt. 113. Farnham v. Thomas. Opinion by Taft, J.

PARTNERSHIP-PROMISE BY ONE PARTNER-RATIFICATION.-One member of the defendant firm promised to pay the debt due to the plaintiff from a certain marble company. The firm owned one-fourth of the stock of the company,controlled its financial operations until it became hopelessly involved; and the consideration of the promise was forbearance to attach its property. The partner making the promise managed the business of his firm; all his operations and negotiations indicated a purpose to absorb and get title to the property of the marble company; and this purpose was accomplished. It did not appear but that the transactions were within the scope of the partnership. Held, that a receipt of the benefit in obtaining title to and possession of the property by the firm was a ratification of all acts done in obtaining it; and that such a ratification was equivalent to antecedent authority from the firm. Lynch v. Flint. Opinion by Ross, J.

HIGHWAY-WHEN TOWN NOT BOUND TO KEEP IN REPAIR-ADOPTION-EVIDENCE.-The use of a road for public travel however extensive that use may be, is not sufficient to constitute such road a highway by adoption so as to impose the duty upon the town to keep it in repair. There must be in addition evidence of some act of the town recognizing it as a highwayas putting the same in the rate bills of the highway surveyor, expending money thereon, shutting up the old road, leaving no other avenue for travel, etc.; hence the plaintiff failed to prove that the highway upon which the accident happened was one that the town was legally bound to keep in repair, by proving that the road was used, that it was the direct thoroughfare from one street to another, that there were sidewalks upon both sides of it, and a lamp post on one corner; and although the defendant did not object to the admission of this evidence, it did not thereby waive its right to claim legal proof that it was bound to keep the highway in repair. In Blodgett v. Royalton, 14 Vt. 288, it was held that the consent merely of the selectmen that any person should travel on any path whether a public or private road was no act recognizing such road as a highway for which the town was responsible; and that their knowledge that a traveller supposed it to be a public highway was of no importance, unless by some act of theirs it could be inferred that they had opened the road or adopted it

*To appear in 56 Vermont Reports.

as a highway to be repaired by the town. In the opinion that that question could be better passed upon in

the trial to the jury. The institution and prosecu-
tion of proceedings under Rev. Stat. U. S., § 4285, in a
District Court of the United States, followed by a de-
cree, is a bar to an action in this court to recover dam-
ages for personal injuries received in the marine col-
lision which was the basis of the proceedings in the
District Court. Rounds v. Prov. & Stonington S. S. Co.
Opinion by Durfee, C. J.

ion, Judge Williams specifies acts of the town or selectmen which would constitute the adoption of a highway by a town-such as the shutting up an old road, leaving no other avenue for travel except on a road which they had made, and putting the same into the rate bills of the highway surveyor. The same learned judge says, in Page v. Weathersfield, 13 Vt. 424, that a public highway may be proved by showing that the town had recognized it as such by doing labor thereon, or authorizing the highway surveyors to expend money thereon. In Folsom v. Underhill, 36 Vt. 580, it was held that neither the fact of a dedication of land to the public as a highway, nor the use of the land by the public as a road for public travel, would be sufficient to impose upon the town a duty to keep the road in repair as a highway. The use of a road for public travel however extensive that use may be, is not sufficient to constitute such road a highway by adoption so as to impose the duty upon the town to keep it in repair. The plaintiff claimed that her horse became frightened at a dump-cart "tipped-up" on the side of the street opposite a carriage shop. Held, that what one of the selectmen said immediately after the accident, namely, "the road was always full of something there," was not admissible, as the admissions of selectmen unconnected with any official act cannot be used to charge the town with liability. The cart was left at the shop for repairs at about ten A. M., and the accident happened about two P. M., of the same day; aud the question being where the cart stood and whether the selectmen knew of it, held, that evidence was inadmissible to prove that customers, when bringing their carriages to this shop for repairs, were accustomed to leave them on the margin of the highway and sometimes outside the sidewalk. Tower v. Rutland. Opinion by Royce, C. J.



SHIP AND SHIPPING UNITED STATES REVISED STATUTES, SECTIONS 4283-5-APPLICATION-BAR.-The United States Limited Liability Act of March 3, 1851, in favor of ship owners, etc., Rev. Stat. U. S., §§ 42834285, applies to injury to the person as well as to injury to property. In the case of the Epsilon, 6 Ben. 378, this point was carefully examined by Judge Benedict, of the Eastern District of New York, and his conclusion was that the sections prescribing procedure could not be held "to engraft any restriction upon the language" of the section granting the limitation. His opinion was that the United States District Courts have power to carry the limitation into effect under their general admiralty jurisdiction independently of the provisions for procedure. The construction applied by Judge Benedict was approved and followed by Judge Choate, of the Southern District of New York, in the case of the Seawahnaka, 5 Fed. Rep. 599, 624, in which he held that claims for damages for personal injuries "cannot be distinguished from claims arising out of loss of cargo." See also Norwich Co. v. Wright, 13 Wall. 104. Providence & New York Steamship Co. v. The Hill Manf. Co., decided in the Supreme Court of the United States, October Term, 1883. We therefore decide that the limitation of liability extends to personal injuries. The case of Wallace v. Providence & Stonington Steamship Co., 14 Fed. Rep. 56, is not in conflict with this decision; for in that case the court held simply that it was not necessary to determine on demurrer whether the limitation of liability extended to personal injuries, being of the opin

*To appear in 14 Rhode Island Reports.

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MECHANICS' LIEN-ASSIGNABILITY-PRIORITY OVER SUBSEQUENT MORTGAGE.-A. by special contract, made July 29, 1880, engaged to build a house for B. December 1, 1880, A. assigned the contract to C. At the time of the assignment A. had taken no steps to secure a mechanics' lien. B. consented that C. should proceed under the contract and finish the house. Held (1) that B.'s consent to C.'s proceeding under the contract was a consent to the transfer of the contract to C. (2) That C. was entitled to perfect and enforce a mechanics' lien, using the name of the assignors. Caldwell v. Lawrence, 10 Wis. 331; Pearsons v. Tincker, 36 Me. 384; Murphy v. Adams, 71 id. 113. Held further, that a mechanics' lien, though inchoate, is assignable, passing in equity with the debt or contract for which it is security. It is not for the debtor to say that it shall not follow the debt; and evidently it is greatly to the advantage of the creditor to have it to do so; for if it follows the debt, it enhances its value, because of the security which it affords. Phillips on Mechanics' Liens, § 55; Tuttle v. Howe, 14 Minn. 145; Iaege v. Bossieux, 15 Gratt. 83; Skyrme v. Occidental Mill & Mining Co., Nev. 219; Rogers v. Omaha Hotel Co., 4 Neb. 54; Mason v. Germanie, 1 Mont. 263; Davis v. Bilsland, 18 Wall. 659; Kerr v. Moore, 54 Miss. 286; Goff v. Papin, 34 Mo. 178; Murphy v. Adams, 71 Me. 113. The defendant contends that the lien did not pass because McDonald & Co. had taken no steps to perfect it before making the assignment. He refers to Brown v. 'Smith, 55 Iowa, 31, and Langan v. Sankey, 55 id. 52. These cases hold that a mere right to a mechanics' lien, before the lien has been per fected by the filing of the claims, is not assignable. These cases were decided under a statute which declared that " Mechanics' liens are assignable and shall follow the assignment of the debt." It not appearing that C. entered into any contract with B. or that A. was ever released by B., held, that C. proceeded properly in using the name of A. A mechanics' lieu has, under Pub. Stat. R. I., ch. 177, § 1, precedence over any other lien which originates after the work has begun, hence over a mortgage given after the work has begun. McDonald v. Kelly. Opinion by Durfee, C. J.

MOTION IN ARREST. The indictment charged the
respondent with having set fire to and burned “a cer-
tain barn of one " B., *k * *
"it being an out-
building adjoining the dwelling-house of the said " B.
The offense charged was punishable by § 4126, R. L., as
amended by the act of 1882, No. 84; the offeuse proved
was punishable by § 4128, R. L. Both sections are to
prevent the unlawful burning of buildings; the former
to protect the dwelling-house; the latter, every
building by one section the offender, could be impris-
oned for life; by the other, not more than ten years.
Held, that a conviction under the indictment can be
had for the lesser offense. That it is to be presumed,
in the absence of any statement to the contrary, that
the court properly instructed the jury to return a ver-
dict for the lesser offense, the charge of the court, the
sentence, and the evidence, being appropriate to such
conviction. State v. Downer, 8 Vt. 424; State v. Burt, 25
id. 373; State v. Carpenter, 54 id. 551, and in many other
cases. This indictment on its face is sufficient; hence


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the motion in arrest was properly overruled, as such a
motion is addressed to errors apparent upon the record.
Sup. Ct., Vermont, Jan., 1884. State v. Thornton. Opin-
ion by Ross, J. (60 Vt. 35.)



adopter signed a paper stating that she could have her son (the adopted child) at any time she calls for him." Held (1), that under the statute (Rev. Stat. 1879, § 601), by joining in the deed she relinquished her parental rights over the child; (2) that the subsequent paper could not be construed to work a revocation of the deed; it was evidently intended to allow her only the temporary custody and society of the child. Matter of Berenice S. Scarrett, 76 Mo. 565; Reinders v. Koppelman, 68 id. 499. Matter of Clements. Opinion by Hough, C. J.

be charged to have been committed either on some
one particular day, or if it have continuance, on a
series of days, under a continuando. A charge in the
latter form is usually made by charging the commis-
sion on two days, more or less widely separated, the
latter generally being designated as the day of the
finding of the indictment or of the making of the com-
plaint, and on divers days and times between them.
When it is so made, testimony is admissible to prove
the commission of the offense at any time within the
period alleged. It has been held that the offense of
illegally keeping intoxicating liquors for sale may
properly be charged under a continuando. Common-
wealth v. Snow, 14 Gray, 20; Commonwealth v. Chis-
holm, 103 Mass. 213. When the offense is alleged to
have been committed on some one particular day, it is
well settled that testimony may be adduced to prove
the commission either on the day mentioned or on any
other day before the finding of the indictment or the
making of the complaint, within the period of limita-
tion, but not to prove the commission on more than
one day. Commonwealth v. Kelly, 10 Cush. 69; Whar-Broadway Sav. Bank, 10 Mo. App. 499. (3) A deed of
ton on Crim. Ev., § 103. When the offense is charged assignment, which makes no reference to a schedule of
as having been committed on a particular day, and the assets accompanying it, will not be limited in its op-
prosecutor has testimony which he wishes to intro- eration to the assets embraced in the schedule, but
duce applying to other days, it is advisable for him, in will pass any which come within its terms. Eppright
order to avoid any misunderstanding, to specify be- v. Nickerson. Opinion by Henry, J.
forehand the day on which he undertakes to prove the
offense. If he neglects to do this, and begins by in-
troducing testimony which directly tends to prove the
charge on some particular day, he will be held to have
elected that day as the day on which he is to prove the
offense, though he may prefer a different day. State
v. Bates, 10 Conn. 372; People v. Jenness, 5 Mich. 305,
327; Stante v. Bricket, 1 Camp. 473; Sedly v. Suther-
land, 3 Esp. 202; Pierce v. Pickens, 16 Mass. 470. A
motion for a bill of particulars is a motion addressed
to the discretion of the court, and as such is not re-
visable for error on a bill of exceptions. Common-
wealth v, Giles, 1 Gray, 466; Commonwealth v. Wood,
4 id. 11; Chaffee v. Soldan, 5 Mich. 242; State v. Hood,
51 Me. 363. Sup. Ct., Rhode Island. State v. Nagle.
Opinion by Durfee, C. J. (14 R. I.)

SUE ALONE.-A married woman may sue as a femme
sole in all cases where her husband has abandoned or
deserted her, and taken up his abode in another State
or jurisdiction. This was the rule of the common law
and the statute has not changed it. 2 Wag. St. 1001, §
8; Rev. St. 1879, § 3468; Co. Litt. 132, 133; Viner
Abridg. 151, 152; 1 Black. Com. 443; Rose v. Bates, 12
Mo. 33; Musick v. Dodson, 76 id. 624; Danner v. Ber-
thold, 11 Mo. App. 351; Gallagher v. Delargy, 57 Mo.
37; Abbott v. Bailey, 6 Pick. 89; Gregory v. Pearce, 4
Met. 478: Gregory v. Paul, 15 Mass. 31; Bean v. Mor-
gan, 4 McCord, 148; Rhea v. Rhermer, 1 Pet. 100;
Cornwall v. Hoyt, 7 Conn. 427; Clark v. Valentine, 41
Ga. 143; Love v. Moynehan, 16 Ill. 277; Roland v. Lo-
gan, 18 Ala. 307; Osborn v. Nelson, 59 Barb. 375.
Phelps v. Walthen. Opinion by Martin, Comr.
mother joined in executing a deed of adoption of her
child. A day or two afterward, at her request, the

*Appearing in 78 Missouri Reports.


(1) An assignment of all the assets of an insolvent corporation for the benefit of creditors, if made by the board of directors without the consent of the stockholders, is ultra vires and void, but only as against the stockholders. A creditor of the corporation cannot make the objection. Field on Corp., § 151; Abbott v. American Hard Rubber Co., 33 Barb. 580. (2) An insolvent corporation may include in an assignment for the benefit of its creditors the liability of its stockholders for unpaid stock for which no call has been made. Ex parte Stanley, 4 De G. J. & S. 407; In re Sankey Brook Coal Co., L. R., 10 Eq. Cas. 381; Ohio Life Ins. Co. v. Trust Co., 11 Humph. 1; Sagory v. Dubois, 3 Sandf. Ch. 466; Terry v. Anderson, 95 U. S. 628; Marsh v. Burroughs, 1 Woods, 463; Lionberger v.


following is from the Portland Advertiser. It is

a faithful report of State v. Harriman, 75 Me. 562;
S. C., 46 Am. Rep. 423, holding that dogs are not "do-
mestic animals." We have heretofore given much of
Chief Justice Appleton's dissenting opinion-(may it
be a distant day when we have to write his obituary)—
in a chapter of "Common Words and Phrases."
A dog Miller had, that was well-bred and knowing,
Worth a hundred or more as good dogs are going.
He lived in Wiscasset, a quiet old town;

The dog in his back yard patrolled up and down,
And guarded his house from burglars and thieves-
If aught worth the stealing any believes
Could be found in the quiet old burg of Wiscasset-
MISSOURI SUPREME COURT ABSTRACT.* Though for ruinous beauty no town can surpass it.
This well-behaved creature, in no mischief caught,
In the peace of the State, one Harriman shot.
Provoked at the outrage, the owner then cited him
To court, and the jury for malice indicted him.
Of the criminal law 'tis a prominent feature
That whoever with malice a domestic creature
Shall kill, poison or maim, or only disfigure,
By stabbing or beating or drawing of trigger,
Of grave misdemeanor shall guilty be held,
And be fined for the crime, or in prison be celled.
The dog-killer hied him to Counsellor Moore,
A lawyer well-versed in juridical lore,

To make a defense with skill and with tact
That should forefend the pains of his treacherous act.
"The killing the dog, you cannot deny?"
"I can't," said the man, "I can't tell a lie.

By daylight I shot him, provoked at his howling,
That kept me nights long, mad sleepless and owling."
"Well then we'll admit the killing the cur,"
Said the lawyer," and to the indictment demur.
To the court we will plead--this gets rid of the jury-
That a dog is a creature feræ naturæ."

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